Georgetown Rail v. Holland (August 16, 2017)

The CAFC issued an interesting opinion which touched on some issues that arise in lost profit matters. The case provides a good meta-analysis of the lost profits damages requirements and summarizes where the case law on lost profits damages stands.

An important consideration in any lost profits analysis is an actual demonstration of causality; specifically, “reliable economic evidence of but for causation.”  The opinion states:

The opinion also identifies the Panduit test as a “useful but non-exclusive” method to derive lost profits.  The discussion in this matter is echoed by Calico Brands.

Carnegie Mellon v. Marvell (August 4, 2015)

The CAFC issued an interesting opinion which affirmed a $0.50 per unit sold royalty rate but did not allow that rate to be applied to products made and used outside of the United States.

This case is particularly interesting because it appears to touch on the current thinking on the book of wisdom. It also suggests (as have other cases in the past) that the time of the hypothetical negotiation is of paramount importance. The opinion reviews several issues regarding expert qualifications, royalty calculations, and enhanced damages.

Here is a quote from the opinion citing to the recent AstraZeneca case:

Westerngeco v. Ion Geophysical (July 2, 2015)

The opinion discusses several damages issues, including extraterritorial reach of patent damages, specifically limitations of that reach.  It also discusses the exclusion of a damages expert who opined that the royalty rate should be 4 times the price of the accused items.  Specifically the CAFC noted that the exclusion of the expert was merited given that:

This case provides a potential cap on damages and thus a response to Stickle v. Heublein where damages may be higher than an infringer’s profit and higher than the price set on the infringing product.